Mumbai, January 18, 2019 – A Special Judge for Narcotics Drugs and Psychotropic Substances (NDPS) Act cases in Greater Bombay has rejected the bail application of Kasim Mohd. Siddique Shivani, also known as Mufti or Imran Mufti, who was arrested with 250 grams of Mephedrone (MD). The court found no merit in the applicant’s claims of non-compliance with mandatory NDPS Act provisions and noted a prior criminal record under the same act.
Special Judge U.M. Mudholkar, presiding over the case (C.R. No. 43), delivered the oral order today, stating that releasing Shivani on bail, given the commercial quantity of drugs seized and his antecedent, “would certainly cause serious prejudice to prosecution and may pose serious danger to the society.”
The Arrest and Seizure
According to the prosecution, on September 6, 2018, Anti Narcotic Cell (ANC) officers were conducting patrolling duty specifically targeting contraband activities during a festival. Under the supervision of Police Inspector Ninad Sawant, two teams were deployed. Shivani was reportedly observed loitering suspiciously. Panch witnesses were called, and during a personal search, 250 grams of MD were allegedly found and seized from him.
During his interrogation, Shivani reportedly disclosed that the MD was supplied by one Sufiyan Pathan of Sewree Cross Road, who was subsequently arrested on September 7, 2018. Shivani has been in judicial custody since the cessation of his ANC custody.
Applicant’s Grounds for Bail
Mr. Dilip Mishra, the legal counsel for Shivani, argued that his client was falsely implicated and that nothing was actually recovered from his possession. The primary contention for bail was the alleged non-compliance with mandatory provisions of Sections 42 and 50 of the NDPS Act. These sections typically require officers to record prior information about an offense and offer the suspect a choice to be searched in the presence of a gazetted officer or magistrate, respectively. Mishra also claimed that the seized substance was not tested on a field testing kit and that the Chemical Analyzer (CA) certificate was not yet obtained, suggesting a lack of prima facie evidence that the substance was indeed MD. He cited the judgment in Mr. Venkata Srinivasan Subramanian V/s. The State by Intelligence Officer to support his arguments.
Prosecution’s Opposition
Mr. Tawade, the Public Prosecutor for the State (ANC), strongly opposed the bail. He maintained that the contraband was seized strictly following legal procedures. He emphasized that the seized quantity of 250 grams of MD falls under the “commercial quantity” category, which, as per Section 37 of the NDPS Act, significantly restricts the grant of bail unless the court is satisfied there are reasonable grounds to believe the accused is not guilty and is unlikely to commit any offense while on bail.
The prosecution further highlighted Shivani’s criminal history, stating that he had a prior NDPS case against him and allegedly committed the current offense while out on bail. They argued that his release could lead to him absconding or continuing similar illicit activities.
Court’s Findings: Chance Recovery and Positive CA Report
Special Judge Mudholkar meticulously reviewed the submissions and the available record, including the FIR and remand papers. The court referred to the established legal principle from Lawrence D’souza V/s State of Maharashtra, which states that compliance with procedural requirements of the NDPS Act (Sections 41 to 58) must be prima facie shown even at the bail stage.
However, the judge distinguished the present case as a “chance/accidental recovery,” rather than one based on prior specific information. The court noted that officers were on general patrolling duty and observed Shivani’s suspicious activities, leading to the search. It was only after opening the bag in the presence of panchas that the MD was discovered. Therefore, the court concluded that mandatory compliance with Sections 42 and 50 was not required in this instance.
Regarding the absence of a field testing kit, the Investigating Officer submitted a report dated January 8, 2019, confirming that the competent authority had not yet provided such kits for MD. Crucially, the Investigating Officer also filed true copies of the Chemical Analyzer (CA) report and data sheet, which unequivocally showed the detection of Mephedrone (MD). This confirmed the nature of the seized substance and negated the defense’s argument on that point.
Conclusion: Bail Rejected
Given these findings, the court held that the commercial quantity of MD was seized in strict observance of the law, bringing Section 37 of the NDPS Act into play. The court also took serious note of Shivani’s previous NDPS case, emphasizing the anti-social nature of drug offenses and their devastating effects on society.
“Having regard to all these aspects no case is made out for release of the applicant on bail,” the order concluded, rejecting all arguments submitted by the defense.